Jackowitz v. Deslauriers
| Decision Date | 08 July 1960 |
| Docket Number | No. 2811,2811 |
| Citation | 91 R.I. 269,162 A.2d 528 |
| Parties | Joseph JACKOWITZ et ux. v. Arthur P. DESLAURIERS et ux. Eq. |
| Court | Rhode Island Supreme Court |
Robert Brown, Providence, for complainants.
Vincent J. Chisholm, Providence, for respondents.
This is a bill in equity wherein the complainants seek to restrain the respondents from entering upon a certain parcel of real estate the title to which the complainants aver to be in them and from maintaining a hedge and fence thereon. The respondents filed an answer in the nature of a cross bill wherein they prayed that certain affirmative relief be granted them with respect to the parcel of land in question. After a hearing in the superior court, the trial justice entered a decree wherein he declared in substance that title to the real estate was in the complainants; that the respondents had an easement to maintain a cesspool thereon; that they should proceed forthwith to remove the hedge and fence; and that they be enjoined from further entry upon the land other than would be consistent with their easement. From that decree the respondents have appealed to this court.
It appears from the record that in 1947 the Leroy Realty Corporation, hereinafter referred to as the corporation, acquired a tract of land in the Riverside section of the city, formerly the town, of East Providence. This tract was subsequently platted as the Leroy Heights Plat and developed for residential uses. It further appears that at that time and until 1952 Leroy Hanson, a house-builder, was president of the corporation.
It further appears that on February 18, 1948 the corporation conveyed a house and lot located on that plat to respondent Arthur P. Deslauriers, who shortly thereafter conveyed the property to himself and his wife. This lot was designated as lot 46 on said plat and is situated on the easterly side of Wingate Road. It is bounded on the south by lot 45, which is located at the northeast corner of Wingate Road and Sandra Court. Both lots are bounded on the east by lot 69, which is situated on the northerly side of Sandra Court. Lot 69 is the property of complainants, having been conveyed to them by the corporation on July 30, 1958.
It is not disputed that the respondent husband, who is a civil engineer by profession, took up residence in the house on lot 46 early in 1948 and that in the spring of that year he was engaged by Hanson to make certain surveys on the plat concerning the location of the lot lines. In the course of such work said respondent ascertained that his house was located so close to the southerly line of lot 46 that he would be unable to build a garage and breezeway on the south side thereof. Neither is it disputed that thereafter, acting under the direction of Hanson, the respondent husband made a survey by which a long, narrow strip along the norther line of lot 45 was incorporated into lot 46 and a similar strip along the westerly edge of lot 69 was incorporated into lot 45. These parcels, referred to in complainants' exhibit 3 and the transcript as parcel 'A' and parcel 'B,' are not relevant to the issue here.
However, it is the further contention of said respondent that at the same time and under Hanson's direction he ran a survey line from the northeast corner of parcel 'A' in a northeasterly direction to a point on the plat at the southwest corner of lot 48. Such line enclosed an irregularly shaped portion of lot 69 which lay immediately to the east of his own lot 46 and is referred to in the exhibit and the record as parcel 'C.' In his testimony Hanson disputes his participation in this transaction.
It is clear that for some time the respondent husband has treated parcel 'C' as a part of his own lot, extended his lawn into that parcel, and planted a hedge and erected a fence along the easterly line thereof. In his decision the trial justice found that parcel 'C' was the property of complainants and on that ground granted the relief set out in the decree appealed from. The respondents, in pressing their appeal, contend that the trial justice erred, first, in finding that they had not acquired title to that parcel by adverse possession and, second, that there had been no acquiescence by complainants in the easterly line of parcel 'C' as the boundary line between the properties sufficient to estop them from asserting that it is not the true boundary line.
The respondents' claim that they have acquired title to parcel 'C' by adverse possession is, of course, made in reliance upon the provisions of General Laws 1956, § 34-7-1. That statute, in pertinent part, provides that when one claiming title to real estate 'shall have been for the space of ten (10) years in the uninterrupted, quiet, peaceful and actual seisin and possession of any lands, tenements or hereditaments for and during the said time, claiming the same as his, her or their proper, sole and rightful estate in fee simple * * *' he will be held thereby to have acquired title to that land. The burden, therefore, is on the respondents to prove that they have for a period of ten years been in the uninterrupted, quiet, peaceful and actual seisin of the land in question. Parrillo v. Riccitelli, 84 R.I. 276, 279, 123 A.2d 248.
In this respect the respondent husband testified that when he took possession of the house on lot 46 in the spring of 1948 he began immediately to develop a lawn around it. He testified that to this end he had graded the lot and had spread topsoil and grass seed thereon, including in the area with which he so dealt that portion of lot 69 extending to the easterly line of parcel 'C.' He further testified that he had top-dressed, fertilized, mowed, and otherwise maintained the resultant lawn continuously from the spring of 1948 to the time of the hearing. According to his further testimony, he enclosed the disputed area, parcel 'C,' in the summer of 1950 by planting a hedge of flowering shrubs along the easterly line thereof.
The trial justice in his decision refers to the above-noted testimony, stating in...
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